IN THE case of former Labour Minister Austin Liato the Supreme Court has said bye bye to the presumption of innocence.
Under the Constitution, the right not to self-incriminate is absolutely cardinal.
The law puts the onus and burden of proof on the prosecution. By their singular judgment the Supreme Court has diminished the burden of proof and virtually extinguished the right to remain silent.
These are very cardinal principles of the criminal justice system.
UNDER ARTICLE 18 (2) (a)
Every person who is charged with a criminal offence –
(a) Shall be presumed to be innocent until he is proved or has pleaded guilty.
This provision is in consonance with cases of Woolminaton V DPP 1935ACT 62 and CHAN KAU V R 1955 AC 206.
Throughout the web of English criminal law the burden is on the prosecution to prove their case beyond all reasonable doubt and there is no onus on the accused to prove his innocence.
ARTICLE 18 (1)
A person who is tried for a criminal offence shall not be compelled to give evidence at the trial.
Any statute that directly or constructively compel the accused to give evidence either by drawing an adverse inference if they remain silent is unconstitutional.
In the case of Chirwa J in RE Mumba (1984 ZR), it was declared that a provision in the Anti-Corruption Act which provided that an accused person if found with a case to answer should give evidence on oath was unconstitutional.
Therefore the law under which Liato was convicted should equally be unconstitutional.
The cases cited in Liato were British which country is a parliamentary supremacy i.e. the Parliament is the highest court and there is no written constitution. The approach of Chirwa J as he then was in RE Mumba 1984 ZR should have been followed.
Most Zambians especially of Asian origin keep stacks of money in their homes, so if they are charged and remain silent either because they are frightened by the courtroom environment should they be convicted.?
The decision of Chirwa J is in accord with Article 18 and the Fifth Amendment to the constitution of the United States which reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless:
On a presentment or indictment of a grand jury, except in cases arising in the land or maual forces , or in the militia, when in actual service in time of war or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life, or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
Article 18(7) is similar to the Fifth Amendment in our view as layment American cases interpreting the Fifth Amendment and Judge Chirwa’s judgement, though it was a High Court judgment. It is good law and has never been overruled. In any event he was one of experienced prosecutors and judges. It is very clear that the Supreme court did not only step beyond its bounds but actually touched on the Constitution. It now requires a very astute and public-spirited Zambian body to challenge the ruling in order to seek the reinstatement of these very important principles of law that have been abrogated.